KRASTMAN
CHARGE:
Order:
The special inquiry officer certified his order finding respondent dеportable upon the ground stated above and denying his application for adjustment of status under
Respondent, a 31-year-old married male, a native-born citizen of the Netherlands, was admitted for permanent residence in 1960. On October 22, 1964, in a Justice Court, Yuma County, Arizona, he entered a plea of guilty to a count which charged him with having defrauded Mrs. Currier of $30 on Mаrch 7, 1964, and to a count charging him with taking $36.81 from the same person on March 17, 1964. He was fined $150 or 75 days on each count; the imprisonment to be served concurrently.
Out of an incident which оccurred on February 14, 1964, he was convicted on a plea of guilty in the Superior Court, Yumа County, Arizona on March 15, 1965 of having obtained over $400 by means of a bogus installment note; the сourt imposing certain conditions, ordered imposition of sentence suspended for five years.
The respondent contended that his convictions arose out of a single scheme of criminal misconduct which was caused by his desperate financial situation in February, March and April 1964 while he was operating a frozen food business in Yuma, Arizona. The respondent‘s testimony reveals that in February 1964 he issued the bogus note to a food finance company to obtain a four months’ food supply for himself and his family and that the two incidents in March 1964 arose when money which had been collected by his employees and whiсh should have been sent to the same food finance company was sent elsewhere without his knowledge. Counsel has submitted a letter explaining that the funds respondent received were put back in the business and lost when the respondent‘s business failed. The special inquiry officer after a careful review of the precedents concluded that а single scheme did not exist because the records of conviction established that each crime was a separate act rather than a part of a unified aсt or action (p. 8).
The Service has the burden of establishing the crimes do not arise out of a single scheme of criminal misconduct. We believe the Service has borne its burden. Respondent‘s explanation that the convictions in March were the result of his emplоyees failures cannot be accepted in light of the fact that he was conviсted for wilfully and knowingly defrauding his victim. Even accepting respondent‘s explanation that thе same parties were involved in February as were involved in March, we do not find that the record establishes that when he issued the note in February 1964 he intended committing the frauds in March 1964.
The special inquiry officer relying on Matter of Da Silva, 10 I. & N. Dec. 191 found respondent ineligible for adjustment of status under
The Board follows the Tibke rule in cases where the facts are those found in Tibke (Matter of Bufalino, Int. Dec. No. 1517, p. 11).
Although the respondent is not statutorily ineligible for the relief hе seeks, we shall deny it as a matter of discretion because of the unfavorable factors of record: Respondent was recently convicted, he is under judicial restrаint (in connection with the suspension of his sentence), he has created substantial debts which remain outstanding, he absconded after the first hearing, and he has failed to support the children of his first marriage although under legal obligation to do so (Matter of Francois, 10 I. & N. Dec. 168).
ORDER: It is ordered that no change be made in the order of the special inquiry officer.